Ah-Ying had worked in a hostel as a cleaner for more than three years. Her performance was generally considered satisfactory. According to the personnel practice of her organization, she notified her supervisor of her pregnancy when she got pregnant. But things soon began to change. Instead of using a mop, she was asked to get down on her knees to towel the floor dry. She was also asked to vacate her quarters for her replacement a week before she proceeded to maternity leave, even though empty staff rooms were available. Because of this, she had to travel to work and had to walk for almost an hour after getting off the bus. Worst of all, she found herself jobless on her first day back at work from maternity leave.
What the EOC did
Frustrated and disappointed, Ah-Ying lodged a complaint with the Equal Opportunities Commission (EOC). EOC investigators looked into the complaint and sought information from the supervisor. He explained that a towel dried the floor better than a mop, especially on humid days. He added that Ah-Ying was later allowed to clean the floor with a mop. The employer denied the allegation of discrimination, and claimed that the real reason for dismissing Ah-Ying was her bad attitude and poor work performance.
Repeated attempts for conciliation were made by the EOC but were unsuccessful. The complainant applied for, and was granted, legal assistance by the EOC. Our lawyers, acting on behalf of Ah-Ying, took over the case and informed the employer that legal action would be commenced unless the employer wished to settle the case. Negotiations then began between the EOC's lawyers and the employer's lawyers. Eventually the employer agreed to settle the case with a monetary compensation without bringing the case to court.
What the law says
Under the Sex Discrimination Ordinance (SDO), it is unlawful to discriminate against a woman on the grounds of pregnancy. That is, an employer cannot treat a pregnant woman less favorably or dismiss her because she is pregnant.
Good management practice : Consistent selection criteria
Consistent selection criteria (CSC) are selection criteria that are applied consistently to applicants or employees in recruitment, promotion, transfer, training, dismissal or redundancy. They also apply to setting the terms and conditions of employment. These criteria and terms and conditions should be made known to employees or job applicants upon request.
It is important for employers to have CSC to avoid acting unlawfully. It is also a matter of good management practice. The application of CSC helps to promote fairness and avoid discrimination on the grounds of pregnancy, sex, marital status or disability.
Developing CSC should start with drawing up a list of job-related requirements and identifying the range of relevant and essential personal requirements under the headings of education, experience, knowledge, skills and abilities. During this process, try to ensure that the CSC are objective, clearly defined, and ranked in order of priority. They should be set out in such a way that they can be easily assessed.
|Q & A on maternity leave |
|Q1 ||When I returned from maternity leave, my employer said I was dismissed as they had already hired a replacement. Is my dismissal lawful?|
|A1 ||It is unlawful for an employer to dismiss a woman for reasons arising out of her pregnancy. If you were not on maternity leave and they would not have hired a replacement resulting in your dismissal, then there is a case that the dismissal arises out of your pregnancy. |
|Q2 ||I was scheduled for overseas training but when I became pregnant my employer told me they wanted to postpone it for my own good. But the training would not interfere with my pregnancy. Is it lawful for them to take away my training opportunity? |
|A2 ||The SDO specifies that an employer cannot treat a pregnant woman less favorably than he or she would treat a non-pregnant woman. Therefore, a woman cannot be denied training, promotion, or salary increase because of her pregnancy. Nor can an employer transfer a woman to a less favorable job or a lower paying job because of her pregnancy. |
|Q3 ||After I had reported my pregnancy to the employer, the employer asked me to be demoted or to reduce my salary in view that my productivity would be decreased as a result of my health condition being affected and the need to attend antenatal appointments during pregnancy. Can the employer do that? |
|A3 ||No. These are less favorable treatments given to a pregnant woman, which is unlawful under SDO. Furthermore, it may also breach the Employment Ordinance. |
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Source : Equal Opportunities Commission